concurring:
Margaret Walker Alexander, a distinguished author, poet and teacher, has written a number of well-known works including the novel Jubilee which won the Houghton Mifflin Library Fellowship Award in 1966. In 1988 she sued Alex Haley, Doubleday & Co., Inc. and Doubleday Publishing Co. in the Southern District of New York alleging, among other things, that the book Roots, written by Haley and published by Doubleday, infringed her copyright in her novel. Alexander made substantially the same arguments against Haley and Doubleday that Ellen Wright now is making against her. She lost. Then District Judge Frankel granted the defendants’ motion for summary judgment in a well-written opinion reported at 460 F.Supp. 40.
It would be ironic indeed if, in the instant case where Alexander’s role is reversed, she lost again. I concur fully in my colleagues’ decision to terminate this litigation in her favor. I write separately only because I believe the arguments on Alexander’s behalf are stronger than would appear from the majority opinion. In the first place, I would not go as far as my colleagues have gone in finding copyright-*742ability. Secondly, in determining the issue of fair use, I would place less emphasis on the fact that some of the allegedly infringed matter was unpublished.
COPYRIGHTABILITY
In.deciding whether Alexander’s book infringed upon Wright’s copyrighted works, we must not lose sight of the fact that “[t]here may be much in what is popularly called a copyrighted book as to which the statute affords no protection.” Dymow v. Bolton, 11 F.2d 690, 691 (2d Cir.1926). A copyright in a book gives the author no monopoly of its contents. Oxford Book Co. v. College Entrance Book Co., 98 F.2d 688, 691 (2d Cir.1938). “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). Moreover, because a claim to copyright is not examined for basic validity before a certificate is issued, H.R.Rep. No. 1476, 94th Cong., 2d Sess. 157 (1976), reprinted in 1976 U.S.Code Cong. & Admin.News pp. 5659, 5773, the presumption of validity prescribed in 17 U.S.C. § 410(c) does not obviate the need for a full examination of excerpts from a copyrighted work that are not the very heart of the work itself. In any event, the statutory presumption is not binding on the judiciary, which may make its own unfettered decision whether the excerpts are copyrightable. See Carol Barnhart, Inc. v. Economy Cover Corp., 773 F.2d 411, 414 (2d Cir.1985).
Even prior to the enactment of the first American copyright statute in 1790, the common law recognized that authors had a protectable proprietary interest in their handiwork. Mazer v. Stein, 347 U.S. 201, 214-15, 74 S.Ct. 460, 469-70, 98 L.Ed. 630 (1954); Warner Bros. Pictures, Inc. v. Columbia Broadcasting Sys., Inc., 216 F.2d 945, 948 (9th Cir.1954), cert. denied, 348 U.S. 971, 75 S.Ct. 532, 99 L.Ed. 756 (1955). However, this interest did not include the author’s ideas, which were said to be “free as air”, Lewys v. O’Neill, 49 F.2d 603, 607 (S.D.N.Y.1931), or “free to the world”, Taylor v. Metro-Goldwyn-Mayer Studios, 115 F.Supp. 156, 157 (S.D.Cal.1953); nor did it encompass incorporated facts or real occurrences, which were held to be in the public domain, see Rosemont Enterprises, Inc. v. Random House, Inc., 366 F.2d 303, 309-10 (2d Cir.1966), cert. denied, 385 U.S. 1009, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967). These traditional exceptions now are covered by statute. 17 U.S.C. § 102(b), supra. Simply put, “no author may copyright facts or ideas.” Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 547, 105 S.Ct. 2218, 2224, 85 L.Ed.2d 588 (1985).
In Alexander’s unsuccessful suit against Haley and Doubleday, the court held that the similarities alleged by Alexander were irrelevant because they related solely to aspects of her works that were not protected by copyright. 460 F.Supp. at 44. The court held that no copyright protection could be claimed for similarities in matters of historical or contemporary fact, id. at 44-45, material traceable to common sources, the public domain or folk custom, id. at 45, or scenes a faire, i.e., “incidents, characters or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic.” Id. The district court continued:
Yet another group of alleged infringements is best described as cliched language, metaphors and the very words of which the language is constructed. Words and metaphors are not subject to copyright protection; nor are phrases and expressions conveying an idea that can only be, or is typically, expressed in a limited number of stereotyped fashions.
Id. at 46.
Of course, the district court’s holdings are not binding on this court simply because Alexander was a party in both cases. However, the principles summarized above are sound, and the district court’s opinion has been cited with approval by several appellate courts, including our own. See, e.g., Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 977 (2d Cir.), cert. denied, 449 U.S. 841, 101 S.Ct. 121, 66 *743L.Ed.2d 49 (1980); Atari Games Corp. v. Oman, 888 F.2d 878, 886 (D.C.Cir.1989); Narell v. Freeman, 872 F.2d 907, 911 (9th Cir.1989). Guided by these principles, I would hold that the amount of copyrightable material allegedly infringed by Alexander, if existent at all, was so minimal that the subject of fair use need not be reached. For example, Wright’s statement set forth in the district court’s opinion, 748 F.Supp. at 110 n. 3, to the effect that a critic had condemned Wright’s work and that the work made him shiver, was a pure statement of fact. So also was Wright’s comment that “life is cold”. The “old fogey superstition” of turning around three times and spitting, also contained in footnote 3, is simply a stereotyped metaphor that customarily is expressed in substantially the same manner. The fifty-five word passage, which my colleagues correctly describe as “a reflective account of Wright’s view on the act of writing”, is similar in nature to those writings in the biography of L. Ron Hubbard dealing with his “life, his views on religion, human relations, the Church, etc.”, which we described as factual or informational. See New Era Publications Int'l, ApS v. Carol Publishing Group, 904 F.2d 152, 157 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 297, 112 L.Ed.2d 251 (1990).
The defense of fair use assumes the existence of infringement. In my opinion, if there is any infringement in the instant case, it is technical at best and so de minim-is as not to be actionable.
FAIR USE
It is unfortunate that in Harper & Row, supra, the seminal case on the issue of fair use, the Court did not attempt to separate the copyrightable from the uncopyrightable in the same detailed fashion that Judge Kaufman did in the Court of Appeals. See 723 F.2d 195, 202-09. In the words of Justice Brennan, who dissented in Harper & Row, the Court majority “[found] no need to resolve the threshold copyrightability issue.” 471 U.S. at 580, 105 S.Ct. at 2240. For purposes of stare decisis, it also is unfortunate that the conduct of the defendant in that case was of such a nature as to elicit from the Court such condemnatory words as “scooped”, “pirated”, “exploited”, “purloined”, “clandestine”, and “chiseler”. Id. at 556, 562-64, 105 S.Ct. at 2228, 2231-32. Because of the foregoing factors, Harper & Row is not an ideal precedent for a case like the instant one, which involves a biography that was written in good faith by a friend of the subject and in which the allegedly infringing uses were minimal, both quantitatively and qualitatively. See, e.g., Maxtone-Graham v. Burtchaell, 803 F.2d 1253, 1263 (2d Cir.1986), cert. denied, 481 U.S. 1059, 107 S.Ct. 2201, 95 L.Ed.2d 856 (1987). In any event, the fact remains that, when the Harper & Row Court stated that “the unpublished nature of a work is ‘[a] key, though not necessarily a determinative, factor’ tending to negate a defense of fair use”, id., 471 U.S. at 555, 105 S.Ct. at 2227, the Court was discussing the author’s “expression”, not his ideas or his facts. Id. at 555-57, 105 S.Ct. at 2227-28.
In sum, I believe my colleagues place too much emphasis on the unpublished nature of Wright’s words in discussing factor (2) of 17 U.S.C. § 107. In my opinion, it is more important to determine whether the pertinent portions of an author’s work constituted facts, ideas or expression than whether they were published. To the extent they constituted facts or ideas rather than expression, they are uncopyrightable and publication vel non is irrelevant.
As stated at the outset, I am in wholehearted agreement with my colleagues’ decision to affirm. I have written only to emphasize the strength of my conviction.